Abstract

State laws regulating abortion have proliferated dramatically in recent years. Twenty-two states adopted seventy different restrictions in 2013 alone. Between 2011 and 2013, state legislatures passed 205 abortion restrictions, exceeding the 189 enacted during the entire prior decade. The constitutionality of several such restrictions — parts of Texas H.B. 2 — was recently litigated in the U.S. Court of Appeals for the Fifth Circuit in Planned Parenthood of Texas v. Abbott. The Abbott court upheld a requirement that doctors performing abortions have admitting privileges at a hospital within thirty miles of the abortion clinic, and it also upheld a limitation on the use of medication-induced abortions. The constitutionality of a third restriction in H.B. 2, which required abortion providers to meet the requirements of ambulatory surgical centers (ASC), was struck down by a federal district court in Texas in August 2014, in Whole Women’s Health v. Lakey. The Fifth Circuit reversed that holding a few weeks later, permitting the ASC requirement to enter into effect. That decision was trumped a few days later, however, by a decision of the U.S. Supreme Court that stayed enforcement of the Texas law until the Fifth Circuit considers the merits of the case, presumably in early 2015. Meanwhile, other federal courts have recently considered the constitutionality of Mississippi, Alabama, and Wisconsin laws which, like H.B. 2, require abortion providers to have hospital-admitting privileges within thirty miles of a clinic. Most of those courts have enjoined the laws because they are presumptively unconstitutional, though the rationales for striking the laws vary. In part because of their differing outcomes and rationales, these cases raise issues likely to be taken up by the U.S. Supreme Court.

Rarely acknowledged in this litigation or commentary about it — at least until the Lakey case — is the fact that these regulations have the greatest impact on women who live farthest from the major metropolitan areas where abortion providers tend to be located. Indeed, these laws appear to exact the greatest toll on women who are both rural and poor. We argue that, contrary to the Fifth Circuit’s decisions in Abbott and Lakey, these laws place undue burdens on the abortion rights of a significant number of women and that they should be declared unconstitutional.

In addition to these normative claims, we draw on three complementary critical frames — legal geography, the concept of privilege, and rural studies’ concept of urbanormativity — to articulate new ways of thinking about the recent spate of so-called incremental abortion regulations and federal courts’ adjudication of the constitutionality of these laws. First, legal geography provides a frame for theorizing the relationship between the abortion regulations and spatiality, revealing how law is variegated and variable and how material space dictates different outcomes from place to place. Second, we deploy the concept of privilege in arguing that many federal judges are spatially privileged but blind to that privilege. In our increasingly metro-centric nation, where rural populations are dwindling and marginalized both literally and symbolically, most federal appellate judges appear to have little experience with, or understanding of, typical socio-spatial features of rurality: transportation challenges, a dearth of services, lack of anonymity, and — frequently — extreme socioeconomic disadvantage. Yet those same spatially privileged judges are applying the undue burden standard to laws that require women to travel hundreds of miles, sometimes on multiple occasions, to access abortion services. Those judges are also typically upholding laws that burden women’s access to medication-induced abortions, which have the potential to ameliorate spatiality’s burden on rural women.

Such spatial privilege and judges’ obliviousness to it are most evident among U.S. Courts of Appeal judges and U.S. Supreme Court justices who construe the “undue burden” standard, while these tend to be less prominent among federal district judges applying the same standard. The judicial blind spot associated with metropolitan spatial privilege was evident most recently in Abbott and Lakey, in which the Fifth Circuit minimized the burden of traveling more than 150 miles each way to reach an abortion provider. Such privilege was also on display more than two decades ago in the U.S. Supreme Court’s decision in Casey v. Planned Parenthood and in many U.S. Courts of Appeals decisions in Casey’s wake. The spatial privilege phenomenon is closely linked to the third frame: critical rural studies’ concept of urbanormativity. By treating urban life as a benchmark for what is normal and, as in Abbott and Lakey, dismissing as constitutionally insignificant the seventeen percent of Texas women who live more than 150 miles from an abortion provider (some as far as 250 miles away), federal appellate judges increasingly articulate an urbanormative jurisprudence. Such decisions have dramatic real-life consequences for rural and other women who live far from the few major metropolitan areas where clinics are able to remain open. But these decisions also marginalize rural people symbolically, and we provide illustrations of judicial urbanormativity in other constitutional contexts — from voting rights to the establishment clause — to further highlight the problem. We close with some suggestions for how reproductive rights advocates could better represent to courts the lived realities of rural women seeking abortion services.

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